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Kaplan: Why Snowden won’t, and shouldn’t, get clemency

First Published Jan 06 2014 02:16 pm • Last Updated Jan 06 2014 02:16 pm

WASHINGTON - I regard Daniel Ellsberg as an American patriot. I was one of the first columnists to write that Director of National Intelligence James Clapper should be fired for lying to Congress. On June 7, two days after the first news stories based on Edward Snowden’s leaks, I wrote a column airing (and endorsing) the concerns of Brian Jenkins, a leading counterterrorism expert, that the government’s massive surveillance program had created "the foundation of a very oppressive state."

And yet I firmly disagree with The New York Times’ Jan. 1 editorial ("Edward Snowden, Whistle-Blower"), calling on President Obama to grant Snowden "some form of clemency" for the "great service" he has done for his country.

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It is true that Snowden’s revelations about the National Security Agency’s surveillance of American citizens - far vaster than any outsider had suspected, in some cases vaster than the agency’s overseers on the secret FISA court had permitted - have triggered a valuable debate, leading possibly to much-needed reforms.

If that were all that Snowden had done, if his stolen trove of beyond-top-secret documents had dealt only with the NSA’s domestic surveillance, then some form of leniency might be worth discussing.

But Snowden did much more than that. The documents that he gave The Washington Post’s Barton Gellman and the Guardian’s Glenn Greenwald have, so far, furnished stories about the NSA’s interception of email traffic, mobile phone calls and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls "worldwide," an effort that (in the Post’s words) "allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect." In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong.

These operations have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with "whistle-blowing."

Many have likened Snowden’s actions to Daniel Ellsberg’s leaking of the Pentagon Papers. (Ellsberg himself has made the comparison.) But the Pentagon Papers were historical documents on how the United States got involved in the Vietnam War. Ellsberg leaked them (after first taking them to several senators, who wanted nothing to do with them) in the hopes that their revelations would inspire pressure to end the war. It’s worth noting that he did not leak several volumes of the Papers dealing with ongoing peace talks. Nor did he leak anything about tactical operations. Nor did he go to North Vietnam and praise its leaders (as Snowden did in Russia).

The New Yorker’s Amy Davidson, who has called on Obama to "pardon" Snowden, cited Jimmy Carter’s pardoning of Vietnam-era draft dodgers as "a useful parallel when thinking about Snowden’s legal situation." This suggestion is mind-boggling on several levels. Among other things, Snowden signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information, and knew the penalties for violating the oath. The young men who evaded the draft, either by fleeing to Canada or serving jail terms, did so to avoid taking an oath to fight a war that they opposed - a war that was over, and widely reviled, by the time that Carter pardoned them.

There are no such extenuating circumstances favoring forgiveness of Snowden. The Times editorial paints an incomplete picture when it claims that he "stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness." In fact, as Snowden himself told the South China Morning Post, he took his job as an NSA contractor, with Booz Allen Hamilton, because he knew that his position would grant him "access to lists of machines all over the world ⅛that⅜ the NSA hacked." He stayed there for just three months, enough to do what he came to do.

Mark Hosenball and Warren Strobel of Reuters later reported, in an eye-opening scoop, that Snowden gained access to his cache of documents by persuading 20 to 25 of his fellow employees to give him their logins and passwords, saying he needed the information to help him do his job as systems administrator. (Most of these former colleagues were subsequently fired.)


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Is a clear picture emerging of why Snowden’s prospects for clemency resemble the proverbial snowball’s chance in hell? He gets himself placed at the NSA’s signals intelligence center in Hawaii for the sole purpose of pilfering extremely classified documents. (How many is unclear: I’ve heard estimates ranging from "tens of thousands" to 1.1 million.) He gains access to many of them by lying to his fellow workers (and turning them into unwitting accomplices). Then he flees to Hong Kong (a protectorate of China, especially when it comes to foreign policy) and, from there, to Russia.

This isn’t quite what it would have seemed in Cold War times. Russia and China are no longer our sworn ideological enemies. But in the realm of cyberconflict and cybersecurity, they are our chief adversaries; they hack, or try to hack, into American computer networks more than any other countries (and we hack, or try to hack, into theirs as well).

Did the Times editorialists review the statement that Snowden made to a human rights group in Moscow this past July, soon after Vladimir Putin granted him asylum? He thanked the nations that had offered him support. "These nations, including Russia, Venezuela, Bolivia, Nicaragua and Ecuador, have my gratitude and respect," he proclaimed, "for being the first to stand against human rights violations carried out by the powerful." Earlier, Snowden had said that he sought refuge in Hong Kong because of its "spirited commitment to free speech and the right of political dissent." He also said, in his interview with the South China Morning Post, that he hoped to spread his cache of documents to journalists in every country where the NSA had operated. "The reality is," he said on another occasion, "that I have acted at great personal risk to help the public of the world, regardless of whether that public is American, European or Asian."

Whistleblowers have large egos by nature, and there is no crime or shame in that. But one gasps at the megalomania and delusion in Snowden’s statements, and one can’t help but wonder if he is a dupe, a tool, or simply astonishingly naïve.

Along these same lines, it may be telling that Snowden did not release - or at least the recipients of his cache haven’t yet published - any documents detailing the cyber-operations of any other countries, especially Russia or China, even though he would have had access to the NSA’s after-action reports on the hundreds or thousands of hacking campaigns that they too have mounted over the years.

This leads to the ultimate question of what to do with Edward Snowden should the Russians spit him out when his asylum status expires and no other country picks him up. I should note that I do not side with the national-security extremists on this matter - former CIA Director James Woolsey’s thunderous remark on Fox News that Snowden "should be hanged by his neck until he is dead" or columnist Max Boot’s jibe that the only kind of plea bargain offered to Snowden should be "one that allows him to serve life in a maximum-security prison rather than face the death penalty for his treason." These may be crowd-pleasing bits of theater, but they’re way over the top.

Snowden’s indictment, should he ever face one, will tally a long list of crimes, but treason - the one crime in this category that carries a possible death penalty - is unlikely to be among them. Treason is defined, and carefully circumscribed, in the U.S. Constitution, specifically in Article III, Section 3, which states:

"Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid or Comfort." Whatever Snowden may have done, whatever damage he may have caused, he did not do this.

But what did he do exactly, why did he do it, and what consequences did his actions have? One could conceive a scenario in which top U.S. government officials offered Snowden a deal (as the Times editorial put it, "a plea bargain" involving "substantially reduced punishment") if, among many other things, he fully answered those questions. Rick Ledgett, the NSA official in charge of damage assessment on the Snowden case, recently told "60 Minutes" that he’d be open to "having a conversation" about clemency for Snowden in exchange for his assistance in securing the stolen documents still out there.

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